New York Law Review

Matter of Pastore v. Boone, 58 N.Y.2d 831 (1983): When Grand Jury Resubmission Rules Do Not Apply

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Matter of Pastore v. Boone, 58 N.Y.2d 831 (1983)

A prosecutor does not need court authorization to present a perjury charge to a grand jury when the charge is based on testimony given to that grand jury, even if a prior grand jury considered a similar perjury charge based on different testimony arising from the same underlying events.

Summary

Pastore testified before a grand jury in 1980 regarding arson, leading to consideration of criminal contempt and perjury charges against him. The grand jury directed indictment for contempt, but not perjury. The District Attorney later dropped the contempt charge. In 1981, the arson charge was resubmitted to a new grand jury, and Pastore testified similarly. This time, he was indicted for perjury. Pastore argued that the perjury charge required court authorization for resubmission under CPL 190.75(3). The Court of Appeals held that authorization was not required because the perjury charge before the 1981 grand jury was a distinct offense based on new testimony, not a resubmission of the original charge considered by the 1980 grand jury.

Facts

1. Pastore testified before a 1980 grand jury investigating arson.
2. The grand jury considered criminal contempt and perjury charges against Pastore.
3. The grand jury directed the District Attorney to indict Pastore for criminal contempt but not for perjury.
4. The District Attorney later dropped the contempt charge.
5. In 1981, the arson charge was resubmitted to a new grand jury.
6. Pastore testified again, substantially paralleling his 1980 testimony.
7. The 1981 grand jury indicted Pastore for perjury based on his 1981 testimony.

Procedural History

1. Pastore moved to dismiss the indictment, arguing failure to obtain authorization to “resubmit” the perjury charge under CPL 190.75(3).
2. The motion was denied.
3. Pastore initiated an Article 78 proceeding in the nature of prohibition.
4. The Appellate Division dismissed the proceeding.
5. The Court of Appeals affirmed the dismissal.

Issue(s)

Whether the indictment for perjury based on testimony before the 1981 Grand Jury constituted a “resubmission” of a charge previously dismissed by the 1980 Grand Jury, thus requiring court authorization under CPL 190.75(3).

Holding

No, because the perjury charge before the 1981 Grand Jury was based on different testimony and constituted a separate and distinct offense from the charge considered by the 1980 Grand Jury.

Court’s Reasoning

The Court of Appeals held that CPL 190.75(3) did not apply in this case. The statute requires authorization for resubmission of a charge previously dismissed by a grand jury. Even assuming the 1980 grand jury’s failure to indict for perjury was equivalent to a dismissal, the court reasoned that the charge presented to the 1981 grand jury was not the same charge. The perjury charge before the 1981 grand jury was based on Pastore’s testimony before that specific grand jury, constituting a new and distinct offense. The court emphasized that the “giving of false testimony before the 1981 Grand Jury nearly a year later” was a separate criminal transaction. The court stated, “That the content of defendant’s testimony on the two occasions was parallel or even identical does not in any way diminish the fact that there were two separate and discrete criminal transactions — the alleged swearing falsely before the 1980 Grand Jury and the alleged swearing falsely before the 1981 Grand Jury.” The indictment was based on the new offense and did not constitute a resubmission of the original charge. Therefore, no authorization was needed.

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